Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. CK58012. Valerie Skeba, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
Appellant Laura D. (Mother) has two children who are dependents of the juvenile court. In this appeal, Mother challenges the court’s refusal to grant a hearing on her petition seeking reunification services. (Welf. & Inst. Code, § 388.) The court did not abuse its discretion: Mother failed to establish a prima facie case of changed circumstances that would warrant a hearing.
FACTS
Mother’s children are Samantha (born in 1997) and Hannah (born in 2005). Samantha’s father is deceased. Mark R. is the father of Hannah. The Department of Children and Family Services (DCFS) became involved with the family’s welfare in February 2005, when Mother tested positive for marijuana and amphetamines at the time of Hannah’s birth.
This appeal concerns Samantha, not Hannah.
In an interview with DCFS, Mother admitted that she “‘smoked a joint with marijuana and meth in it at a friend’s house,’” a few days before she gave birth to Hannah. Mother “admitted that she had a history of using marijuana.” Mother initially denied any history of domestic violence and denied that Mark R. was incarcerated. However, DCFS learned that Mark R. was in jail for domestic violence involving Mother. When confronted about Mark R.’s incarceration, Mother admitted two recent incidents of domestic violence, including one in which Mark R. dragged her by the feet out of a motel and into a parking lot while she was pregnant, leaving marks and scrapes on her back.
A dependency petition was filed in juvenile court. The court found a prima facie case for detaining the children, and placed them in the home of their maternal grandmother (MGM). Reunification services were ordered and Mother was given monitored visitation. In March 2005, Mother and Mark R. waived their right to a trial, and the court sustained allegations of parental failure to protect stemming from Mother’s drug use and parental domestic violence. Mother was ordered to attend a drug rehabilitation program with random testing, domestic violence counseling and parent education. The children remained placed with the MGM.
In June 2005, DCFS reported that Mother was enrolled in a drug program and participating in a 12-step program. Nevertheless, there were reports that Mother was using drugs because “she seemed not stable and acted funny.” Mother tested negative for drugs in March, April and May, completing three out of 24 tests. Mother told DCFS that Mark R. calls and threatens her. Mark R. responded that he does not want to be with Mother because he thinks she is using drugs and he caught her with another man. Mother was evicted from the house where she was living because of her drug use and strange behavior. Based on these reports, the court ordered Mother to test weekly for drugs, instead of monthly.
In interviews with DCFS, Mother and Mark R. both denied using drugs. On July 12, 2005, Mother tested positive for amphetamines. Soon afterwards, Mother asked the court to allow her to have unmonitored and overnight weekend visits with the children, citing her completion of parenting and domestic violence programs and her compliance with the drug program component of her case plan. Mother observed that she had 14 negative drug tests, and she challenged the validity of her positive test on July 12. The court denied Mother’s request due to its concern about her behavior and the positive drug test.
In September 2005, DCFS reported that the children were healthy and happy with the MGM, who was willing to adopt them, if necessary. Mother tested positive for amphetamines a second time, on July 25, 2005. She visited the children almost daily, and the visits went well. She did not have a stable residence. At the September hearing, the court found that the parents were in partial compliance, and that returning the children to parental custody would create a substantial risk of detriment to their physical and emotional health and safety.
In a December 2005 DCFS report, Samantha expressed ambivalence about Mother. At times, she expressed a desire to live with Mother. Another time, citing an incident in which Mother deliberately hurt the MGM, Samantha said, “Right now is not a good time to live with my mom because I am going to teach her a lesson, she will be better.” Samantha criticized Mother for yelling, stepping on people, pulling people’s hair, hitting people, and not being nice. When asked “who really loves you,” Samantha replied, “My GM.”
Mother was suspended from her drug rehabilitation program in August. She tested positive for amphetamines on September 20, 2005, and failed to show up for tests on October 24, November 2, November 4, and November 21. Mother was placed on a 72-hour hold in October after physically attacking the MGM and threatening suicide. The court ordered Mother and the MGM to participate in counseling, and to include Samantha when appropriate.
In March 2006, DCFS reported that Mother was missing drug tests, was not reachable by telephone, and was not visiting the children much. Mother did not show up for drug tests on December 5 or 21, 2005, on January 10 or 26, or on February 8, 2006. Mother failed to show up for appointments with the social worker on several occasions. The children are healthy and happy. Samantha was relieved when she heard that the MGM wanted to adopt her. DCFS recommended that Mother’s reunification services be terminated.
At the hearing on March 13, 2006, the court found that Mother had partially complied with the case plan, but was not in a position to complete it within the next six months. The court terminated Mother’s reunification services. Hannah was placed in the home of Mark R., and Samantha remained with the MGM. DCFS reported that Samantha’s placement with the MGM was “stable and positive,” in the opinion of the child’s therapist. The MGM was willing to care for Samantha as long as needed as a legal guardian, but hoped that Mother would complete her drug treatment program and resume caring for Samantha. Samantha stated that she wanted to continue living with the MGM, and to have her be the legal guardian. On July 10, 2006, the court ordered a legal guardianship for Samantha as the permanent plan, with the MGM as guardian, but did not terminate Mother’s parental rights. The court ended its dependency jurisdiction. The MGM was granted de facto parent status as to Samantha.
In a September 2006 status report, DCFS related that Mother entered an in-patient drug rehabilitation program on June 9, 2006; however she left the program in July and her whereabouts were unknown.
On May 24, 2007, Mother filed a petition for modification, with respect to Samantha. Mother alleged that her circumstances had changed in that she was enrolled in a drug program since February 6, 2007, which included counseling and random drug testing. Since enrolling she had taken “several random drug tests.” The program counselor listed three negative drug tests on February 9, March 2 and March 16. Mother also stated that she was employed, and that she was visiting the children frequently. Mother declared that “Since the beginning of 2007, I have observed my daughters becoming much more bonded with me and they have expressed a desire to come home and live with me full time.” She sought to reopen family reunification services. She asserted that the modification would be in the best interests of the children because they are extremely bonded to her and wish to live with her; she is no longer a risk to them; and she can provide for them financially.
The court denied Mother’s petition without a hearing. It found that there was no showing that a modification would be in the best interests of the children. The court wrote that Mother “has only recently enrolled in a drug program. There needs to be a longer showing of [her] commitment to staying clean.”
DISCUSSION
Mother appeals from the denial of a hearing on her petition for a modification. In a case in which a guardianship was ordered, a parent may seek, “upon grounds of change of circumstance or new evidence,” to set aside an order previously made. (Welf. & Inst. Code, § 388.) The court shall order a hearing “[i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . .” (Ibid.) The application may be denied without a hearing if it fails to reveal any change of circumstances or new evidence that might require a modification. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) At this point in the dependency proceeding, after reunification services have been terminated, the focus is on the child’s need for permanency and stability; the parent’s interest in the custody and companionship of the child is not paramount. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
The denial of a petition brought under Welfare and Institutions Code section 388 is reviewable on appeal. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) The standard of review is abuse of discretion. (In re Mary G. (2007) 151 Cal.App.4th 184, 205; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505; In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) The burden is on the parent bringing the petition to make a prima facie showing of changed circumstances and to demonstrate that a modification would be in the child’s best interests. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; In re Mary G., supra, 151 Cal.App.4th at p. 205.)
The burden of showing changed circumstances cannot be met when a parent abuses drugs and has only recently begun the process of rehabilitation. In Mary G., for example, the court found that a mother did not make a prima facie case of changed circumstances sufficient to warrant a full hearing where the mother had a long history of drug abuse and had achieved sobriety for only three months. The court wrote, “Given the severity of [mother’s] drug problem the court could reasonably find her sobriety between March and the date of the hearing, June 20, was not particularly compelling.” (151 Cal.App.4th at p. 206.) In a similar case, a court found that a father’s seven months of sobriety, “while commendable, was nothing new. He had a history of drug use dating back to his college days, and since then his periods of sobriety alternated with recurring drug use.” (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.) Quoting the father’s counselor, the court observed that “relapses are all too common for a recovering drug user. ‘It is the nature of addiction that one must be “clean” for a much longer period than 120 days to show real reform.’” (Ibid.)
The evidence of changed circumstances in the case at bench was, as in Mary G. and Cliffton B., not compelling. Mother admitted to a history of drug usage in her first interview with the DCFS social worker, including smoking marijuana laced with methamphetamines while pregnant. Mother tested positive for drugs at the time of Hannah’s birth. Mother had poor credibility: she lied about the family’s domestic violence and Mark R.’s incarceration. She only admitted the truth when confronted by evidence that Mark R. was incarcerated for acts of domestic violence at Mother’s residence.
Mother was initially undergoing drug tests once per month. During this period, several people reported that Mother was acting strangely, and she was believed to be using drugs. The court increased the frequency of Mother’s testing, and she was soon found to be using amphetamines. Mother contested the validity of her positive drug test on July 14, 2005, but this was followed by a positive test on July 25, and a positive test in September. She then failed to appear for testing in October, November, and December 2005, and in January and February 2006. It may be inferred that Mother was using drugs continuously during the entire period in which she failed to appear for random drug testing.
Mother entered an in-patient drug rehabilitation program in June 2006, but disappeared from the facility in one month. She re-enrolled in drug rehabilitation in February 2007, and produced three negative tests over a period of four months. On this slim thread of recent sobriety hangs Mother’s May 2007 petition for a modification.
Given Mother’s admitted history of drug usage that predated the dependency proceeding, and her repeated relapses during the dependency proceeding, three clean tests are plainly not enough to qualify as prima facie evidence of a change in circumstances. Mother would have to demonstrate continued sobriety for a far longer period before the juvenile court would be compelled to grant her a full hearing. Under the circumstances, the court could legitimately conclude that Samantha’s best interest is to remain with the MGM until there are ample assurances that Mother has permanently overcome her drug addiction.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.